B-163534, APR. 5, 1968

B-163534: Apr 5, 1968

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO INSTRUMENTAL DIAL AND LIGHTING COMPANY FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. WHICH IS AS FOLLOWS: "1. SMALL BUSINESS (SEE PAR. 14 ON SF 33A) "HE (X) IS. ( ( IS NOT. IF OFFEROR IS A SMALL BUSINESS CONCERN AND IS NOT THE MANUFACTURER OF THE SUPPLIES OFFERED. HE ALSO REPRESENTS THAT ALL SUPPLIES TO BE FURNISHED HEREUNDER ( ( WILL. (X) WILL NOT. 000) "HE IS A ( ( REGULAR DEALER IN. THE CONTRACTING OFFICER CONSIDERED YOUR COMPLETION OF PARAGRAPH 1 A REPRESENTATION THAT ALTHOUGH YOU ARE A SMALL BUSINESS CONCERN YOU ARE NOT THE MANUFACTURER OF THE SUPPLIES AND THEY WILL NOT BE MANUFACTURED BY A SMALL BUSINESS CONCERN. HE VIEWED THIS AS A POSSIBLE MISTAKE SINCE YOU REPRESENTED IN PARAGRAPH 2 THAT YOU ARE A MANUFACTURER OF THE SUPPLIES OFFERED.

B-163534, APR. 5, 1968

TO INSTRUMENTAL DIAL AND LIGHTING COMPANY

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. N00163-68-B-0496, AND THE AWARD OF A CONTRACT THEREUNDER TO ANOTHER BIDDER BY THE NAVAL AVIONIES FACILITY, INDIANAPOLIS, INDIANA.

THE SUBJECT INVITATION, A TOTAL SET-ASIDE FOR SMALL BUSINESS, SOLICITED BIDS ON A QUANTITY OF 36 SERVE REPEATER PACKAGES TO BE DELIVERED WITHIN 98 DAYS AFTER AWARD OF A CONTRACT. ALTHOUGH YOU SUBMITTED THE LOWEST BID, THE CONTRACTING OFFICER CONSIDERED IT NONRESPONSIVE AND ON JANUARY 31, 1968, AWARDED A CONTRACT TO THE SECOND LOWEST BIDDER.

THE CONTRACTING OFFICER FOUND YOUR BID NONRESPONSIVE ON THE BASIS OF YOUR COMPLETION OF PARAGRAPHS 1 AND 2 OF THE REPRESENTATIONS, CERTIFICATIONS, AND ACKNOWLEDGMENTS OF STANDARD FORM 33, WHICH IS AS FOLLOWS:

"1. SMALL BUSINESS (SEE PAR. 14 ON SF 33A)

"HE (X) IS, ( ( IS NOT, A SMALL BUSINESS CONCERN. IF OFFEROR IS A SMALL BUSINESS CONCERN AND IS NOT THE MANUFACTURER OF THE SUPPLIES OFFERED, HE ALSO REPRESENTS THAT ALL SUPPLIES TO BE FURNISHED HEREUNDER ( ( WILL, (X) WILL NOT, BE MANUFACTURED OR PRODUCED BY A SMALL BUSINESS CONCERN IN THE UNITED STATES, ITS POSSESSIONS, OR PUERTO RICO.

"2. REGULAR DEALER -- MANUFACTURER (APPLICABLE ONLY TO SUPPLY CONTRACTS EXCEEDING $10,000)

"HE IS A ( ( REGULAR DEALER IN, (X) MANUFACTURER OF, THE SUPPLIES OFFERED.'

THE CONTRACTING OFFICER CONSIDERED YOUR COMPLETION OF PARAGRAPH 1 A REPRESENTATION THAT ALTHOUGH YOU ARE A SMALL BUSINESS CONCERN YOU ARE NOT THE MANUFACTURER OF THE SUPPLIES AND THEY WILL NOT BE MANUFACTURED BY A SMALL BUSINESS CONCERN. HE VIEWED THIS AS A POSSIBLE MISTAKE SINCE YOU REPRESENTED IN PARAGRAPH 2 THAT YOU ARE A MANUFACTURER OF THE SUPPLIES OFFERED. HE CONCLUDED, HOWEVER, THAT EVEN IF THERE WAS A MISTAKE IN PARAGRAPH 1 YOUR BID WAS NONRESPONSIVE AS SUBMITTED AND HE COULD NOT PERMIT YOU TO EXPLAIN OR CORRECT IT SINCE TO DO SO WOULD BE TANTAMOUNT TO PERMITTING YOU TO DETERMINE YOUR ELIGIBILITY FOR AWARD AFTER BID OPENING.

YOU CONTEND THAT PARAGRAPH 1 IS AMBIGUOUS AND YOU "CHECKED THE WILL NOT- BOX BECAUSE WE INTERPRETED THIS TO MEAN THAT NO OTHER SMALL BUSINESS OR LARGE, OTHER THAN OUR OWN, WOULD BE INVOLVED IN THE MANUFACTURE OF THE UNIT.' FURTHER, YOU QUESTION THE CONTRACTING OFFICER'S FAILURE TO CONTACT YOU AND CLARIFY THE MATTER PRIOR TO MAKING AN AWARD SINCE YOUR BID STATED THAT YOU WERE A SMALL BUSINESS CONCERN AND A MANUFACTURER OF THE SUPPLIES OFFERED.

WE BELIEVE THE CONTRACTING OFFICER ERROR IN HIS REJECTION OF YOUR BID. THE AUTHORITY OF THE CONTRACTING OFFICER TO MAKE AN AWARD IN SITUATIONS SUCH AS HERE INVOLVED IS GOVERNED BY STATUTE AND REGULATIONS PROMULGATED PURSUANT THERETO. ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-301 (A) PROVIDES:

"/A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.' ASPR 2-405 PROVIDES:

"A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, AND NO EFFECT ON QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. THE CONTRACTING OFFICER SHALL EITHER GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID, OR, WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT. * * *"

IN ADDITION TO THE FACT THAT YOUR BID STATES YOU ARE A SMALL BUSINESS CONCERN AND A MANUFACTURER OF THE SUPPLIES OFFERED, SECTION 5.0 THEREOF CLEARLY STATES THAT YOU WILL BE THE MANUFACTURER OF THE SUPPLIES AND THAT THEY WILL BE MANUFACTURED IN YOUR PLANT. SINCE A READING OF YOUR ENTIRE BID CLEARLY INDICATES THAT YOU WILL BE THE MANUFACTURER OF THE SUPPLIES, THE SECOND SENTENCE OF PARAGRAPH 1 IS NOT MATERIAL SINCE IT APPLIES ONLY WHERE THE "OFFEROR IS A SMALL BUSINESS CONCERN AND IS NOT THE MANUFACTURER OF THE SUPPLIES OFFERED.' THEREFORE, EVEN THOUGH IT WAS COMPLETED IN A MANNER INCONSISTENT WITH MATERIAL PROVISIONS OF THE BID, WE BELIEVE IT SHOULD HAVE PROPERLY BEEN CONSIDERED A "MINOR INFORMALITY OR IRREGULARITY * * * WHICH IS MERELY A MATTER OF * * *SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS" AND SHOULD HAVE BEEN WAIVED BY THE CONTRACTING OFFICER. ASPR 2-405, SUPRA. HOWEVER, THERE IS NO EVIDENCE THAT HE ACTED OTHER THAN IN GOOD FAITH OR OTHERWISE ABUSED THE DISCRETION NECESSARILY INCIDENT TO HIS REVIEW AND EVALUATION OF BIDS.

SINCE THE AWARD TO GAP INSTRUMENT CORP. RESULTED IN A VALID CONTRACT, ENFORCEABLE BY BOTH THE GOVERNMENT AND GAP, AND SINCE PERFORMANCE THEREUNDER SHOULD BY NOW BE SUBSTANTIALLY COMPLETED, IT WOULD NOT BE IN THE GOVERNMENT'S INTEREST FOR OUR OFFICE TO DIRECT CANCELLATION.